Volume 23, Number 2 (2012)

Lucinda Vandervort

This article examines the development of affirmative sexual consent in Canadian jurisprudence and legal theory and its adoption in Canadian law. Affirmative sexual consent requirements were explicitly proposed in Canadian legal literature in 1986, codified in the 1992 Criminal Code amendments, and recognized as an essential element of the common law and statutory definitions of sexual consent by the Supreme Court of Canada in a series of cases decided since 1994. Although sexual violence and non-enforcement of sexual assault laws are worldwide phenomena, the international scholarly literature reflects limited awareness of these developments in Canadian law. This article remedies that gap in the literature. The Canadian experience with the definition of sexual consent as communicated “voluntary agreement” demonstrates the value of this conceptualization of consent; the definition provides a well-defined set of nondiscretionary reference points for legal analysis of the facts in sexual assault offenses. The effect is to facilitate effective enforcement of the sexual assault laws and affirm the right to sexual autonomy, sexual self-determination, and equality, consistent with fundamental principles of individual human rights. For all these reasons, familiarity with the Canadian experience may be useful to those engaged with the reform of rape and sexual assault laws in other jurisdictions.

David M. Forman

This article aims to encourage a vital and evolutionary step forward in understanding how multifaceted legal processes shape, and should shape, thinking about gay and lesbian couples within religious communities and the body politic. The article begins by providing context that illustrates the place-based and diffuse nature of an ongoing culture war between civil rights and religious freedom, further exposing the painful irony inherent in using misinterpretations of the Sodom and Gomorrah parable to reinforce inhospitality. The article describes a state-by-state patchwork of nondiscrimination laws governing places of public accommodation and explores the Jim Crow origins of the “Mrs. Murphy” exception that has been incorporated into a handful of state nondiscrimination laws. The article then examines how existing legal frameworks address claims of sexual orientation discrimination alongside defenses based upon religious freedom. Finally, this article seeks to accelerate an emerging trend toward including sexual orientation as a protected category in our nation’s nondiscrimination laws, by highlighting an opportunity to counter religious misinterpretations currently reflected in the prevailing cultural narrative.

Judith Daar

This article addresses the oft-spoken urban myth that the field of assisted reproductive technologies (ART) is a wholly unregulated medical subspecialty, leaving cowboy physicians to abuse vulnerable patients and disregard the well-being of ART-induced offspring. The birth of octoplets in January 2009 fueled this myth and launched a campaign to regulate the field by restricting the number of embryos allowed for transfer in any single IVF cycle. This article critiques the merits of a federal law codifying embryo transfer limits in the provision of infertility care.

Drafting a federal embryo transfer law is easy enough, but assuring enforcement by regulators and compliance by physicians and patients presents near insurmountable barriers. Even if such a law set out sensible clinical guidelines on the number of embryos to transfer, validating that practitioners have complied with statutory standards may require invading patient privacy in a wholly distasteful manner. Moreover, data collected on the effectiveness of civil fines in the regulatory setting suggest rampant undercollection, casting doubt on fine-based penalty’s capacity to deter banned conduct. Still other data suggests that criminal penalties fare no better, as both prosecutors and juries are reluctant to penalize a physician who, in good faith, responds to a patient’s plea for help.

Compliance with embryo transfer limits are in doubt not just because traditional penalty structures are ineffective, but because patients and physicians are incentivized by the high cost and low reimbursement rates for infertility care to prefer more embryos be transferred to maximize the chances for a live birth. When multiple births, particularly twins, is a preferred outcome based on financial constraints, looking to a stand-alone embryo transfer law to curb the high rate of multiples will have little effect. Instead, this article argues that now is the time to ease the financial burden by including infertility care in the package of essential health benefits being developed under the 2010 Patient Protection and Affordable Care Act. Matching the burden of embryo transfer limits with the benefit of coverage will have a real and lasting impact on the public health concerns that legitimately coalesce around multiple births.

Johanna Bond

This Article is the first to use a property lens to explore the social construction of honor within legal systems around the world. The Article makes the claim that the law in many countries has implicitly treated honor as a form of property and has made legal and social allowances for men who seek to reclaim honor property through violence. The Article expands the boundaries of the existing scholarship concerning honor-related violence by exploring the intersections between social constructions of honor and social constructions of property. Using a property lens to analyze the relationship between honor, patriarchal control, and law provides a deeper understanding of the motivations for this form of gender-based violence. The Article also assesses the implications of this new theoretical model and concludes that honor must be reframed to position women as potential holders of honor property and to disassociate honor from the social regulation of women’s sexuality.